Supreme Court Hears Oral Arguments in Federal Air Marshal Whistleblower Case
An air marshal for the Transportation Security Administration (“TSA”) received a text message on his Agency-issued phone in 2003 which caused him to believe that there would no longer be federal air marshals on overnight flights for a period of time. After informing his supervisor and Department of Homeland Security (“DHS”) Inspector General that he did not believe the decision was in the best interest of public safety, and not receiving any confirmation that the decision would be changed, the employee disclosed the information to an MSNBC reporter. After his identity was confirmed, the Agency removed him from his position for disclosing “Sensitive Security Information” (“SSI”). The Merit Systems Protection Board (“MSPB”), on appeal of his removal, held that because TSA’s regulatory ban – via the Aviation and Transportation Security Act of 2001 (“ATSA”) on SSI disclosure without proper authorization was a valid exercise of its delegated authority, the employee had been lawfully terminated despite the employee’s protestation that the disclosure was protected under the Whistleblower Protection Act of 1989 (“WPA”). On appeal to the U.S. Federal Circuit Court of Appeals, the employee argued that under the WPA, the TSA regulation (being an Agency regulation rather than congressional statute) was not “law” that would trigger the WPA’s prohibition on disclosures that are “specifically prohibited by law.” The court of appeals agreed with the employee, and unanimously vacated and remanded the MSPB decision. The government appealed the decision to the United States Supreme Court. On November 4, 2014, the Supreme Court heard oral arguments in the case, Department of Homeland Security v. MacLean.
As reported in a previous FedManager case law update, OSC filed its first ever whistleblower “Friend of the Court” Brief with the Supreme Court in support of the employee in late September.
According to an Associated Press report published after oral arguments concluded, “[s]everal of the Justices indicated during oral argument that the employee did not violate the law when he revealed to a reporter government plans to cut back on overnight trips for undercover air marshals despite a potential terror threat.”
SCOTUSblog, summarizing the government’s position, wrote that the government’s merits brief focused on a two-pronged argument: “(1) the phrase ‘by law’ is presumed to include both statutes and substantive regulations that have the force and effect of law”; and (2) even if the WPA meant to only reference disclosures prohibited by specific statutes, the ATSA satisfies that standard in specifically requiring the TSA to promulgate SSI non-disclosure regulations in language codified at 49 U.S.C. § 114(r)(1).
But the Associated Press report states that when, “[d]uring oral arguments, the Deputy Solicitor General told the Justices that TSA regulations specifically prohibit disclosure of sensitive security information, including any information relating to air marshal deployments,” the Justices pushed back, citing the employee’s argument that the WPA refers only to other laws, and not to agency regulations, as the government argued. “So it is prohibited by regulations, let’s not play games,” Justice Scalia reportedly told the Deputy Solicitor General.
Justice Breyer, and later Justice Scalia, proffered that the President, if in fact whistleblowing disclosures like the one made by the employee were of a real concern, could issue an Executive Order stating that SSI is a prohibited disclosure. According to Justice Scalia, using an Executive Order to address the issue “would make sure that the matter is important enough to occupy the president’s attention and is not so insignificant that an agency that just doesn’t want any whistleblower, doesn’t want any criticism of what it’s doing, can pump out these regulations.”
This comment follows the reasoning of the employee’s response to the government’s merits brief, which argued that the ATSA’s delegation “does not prohibit anything at all – it merely allows DHS ‘to prescribe regulations prohibiting the disclosure of information,” and that “even if § 114(r) were somehow a prohibition, its broad authorization for TSA to shield information if the agency decides disclosure would be ‘detrimental to the security of transportation’ could not possibly qualify as the specific prohibition the WPA requires.”
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Posted in Case Law Update